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The U.S. Court of Appeals in Richmond (4th Cir.) affirmed today that Virginia election officials violated the National Voter Registration…

Posted on June 15, 2012

The U.S. Court of Appeals in Richmond (4th Cir.) affirmed today that Virginia election officials violated the National Voter Registration Act by refusing to release completed voter registration applications. The court found that once the applicants' social security numbers were redacted, their applications were "unquestionably" public under the law.

The court held the applications fell within the public disclosure provision of the act, which requires states to make publicly available "all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters" for two years.

Non-profit organization Project Vote/Voting for America, Inc., sued the general registrar of Norfolk, Va., in 2010 after being denied access to applications submitted by individuals between January 1, 2008, and October 31, 2008, who were not registered to vote in time for the elections that November. The organization, which seeks to increase registration by "young, low-income, and minority voters," according to the opinion, sought the applications based on its concern that the registrar had wrongfully rejected the applications of students at Norfolk State University, a historically African-American institution.

The court affirmed the lower court's ruling that the process of reviewing the applications was both a "program" and "activity" under the public disclosure provision — one that was "plainly" conducted to ensure "the accuracy and currency" of eligible voter lists.

These completed applications not only "concerned" such activities, but were "integral to its execution," the court explained. "Without verification of an applicant's citizenship, age, and other necessary information provided by registration applications, state officials would be unable to determine whether that applicant meets the statutory requirements for inclusion in official voting lists."

Attorney Ryan Malone, who represented Project Vote, said this ruling "is a victory for transparency and disclosure," as the records are "critical to both preventing errors and voter fraud."

In the opinion, the court recognized that the public interest in the information — which included responses to questions about criminal history, mental incompetency, as well as home addresses, phone numbers, and birth dates — should be balanced against the possibility that its release could "inhibit voter registration in some instances."

However, it declined to balance these interests. As Malone explained, the court found that "Congress has already balanced these interests, and has chosen to write a statute that has a broad disclosure requirement."

The court did, however, acknowledge "the many benefits of public disclosure," finding it "self-evident that disclosure will assist the identification of both error and fraud in the preparation and maintenance of voter rolls."

"Without such transparency, public confidence in the essential workings of democracy will suffer," the court stated.

The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief in October, joined by 16 media organizations, urging the court to uphold the records' release and arguing that "access to this information is vital to those who seek to examine the integrity of the voter registration process . . . while the privacy interest in the information sought is insignificant."

In ordering the release of the records, the court rejected the registrar's arguments that the completed applications fell under an exception to the disclosure provision for records relating to a person's "declination to vote," or that to require release would place the act in conflict with privacy provisions in other election-related laws.

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